The glue of our politics

The glue that holds Kenya's politics together is hypocrisy. Would-be saviour, those ones with the Uranus-sized egos, those whom the gods whisper in their ears, "You are the one", they practice hypocrisy to such perfection that not even the approbation of their families sticks to them. We have been witness to their machinations for generations yet we still fall for their false promises and outright lies because our need to believe is greater than our instincts for scepticism and doubt.

We used to be able to tell the charlatans from the lesser charlatans. Our politics may have been deeply tribalistic and very violent, but we were never under the illusion that the men and few women we sent to bunge were driven by our interests. We knew who they were and for the most part, we didn't care too much what they did so long as they didn't steal our wives (which they still did, but not too much) or our goats (which they continued to do, but not all of them) and contributed to church fundraisers (where they gave their small-small thousands and kept their mouths shut about it).

Then we elected Mwai Kibaki and for a brief ninety-day period, we were the Most Optimistic People In The World. We fell for a terrible lie: One Man Can Change The World. What came before laid the foundation for that optimism: Raila Odinga and the rest of the Opposition somehow found the will to set aside their tribal animosities to unite against Baba Moi's project: Uhuru Kenyatta and Musalia Mudavadi, one the son of Kenya's first president-for-life, one the son of one of Baba Moi's most loyal tribal satraps.

Mwai Kibaki, Leader of the Official Opposition, and Raila Odinga, son of Kenya's most difficult vice-presidents, joined hands, and strung together a winning presidential campaign that began with "Kibaki Tosha!" and culminated in "Yote Yawezekana Bila Moi!" It didn't last. By the end of the ninety days, Mwai Kibaki was an invalid, and his Mount Kenya tribal satraps had pushed out Raila Odinga from any kind of decision making, the V-P would soon die in a hospital in London, his successor would keep his head down and eat his supper in silence, and Kenya hurtled towards a constitutional referendum that would shatter the 2003 illusions to smithereens.

By the time the dust had settled after the 2005 referendum, the die was cast; Kenyans would never see an honest bone in any politician ever again. You can see the aftermath of that referendum in some of the political operatives flitting about TV studios these days. Some have come up as a result of the activism and advocacy of young people, particularly after the 2024 anti-Finance-Bill protests, and they have swiftly adopted the hypocritical positions of political godfathers who will discard them as soon as their youthful usefulness is spent. One of the political gadflies of the day, with a penchant for fancy three-piece suits and an English vocabulary that hides the shallowness of his ethics, is a particularly galling example of the extent to which political hypocrisies have spread.

But it is the middle-aged cohort that continues to appall and disconcert in equal measure. On TV, they say all the right things. On WhatsApp, they bow and scrape before the doyens of political hypocrisy with such fervour, it is a wonder they don't develop a permanent crick in their spines for all the contorting they have to do. One, claiming bona fides in energy justice, is particularly expert at running with the hares and hunting with the hounds, painting herself as a champion of the weak and vulnerable all the while seeking a place at the high table of energy sector decision-making.

We should know better. Our window of opportunity to put Kenya on the long and arduous road to political and economic revivification came and went in the smoke and mirrors of grand corruption and the looting of the national coffers. That opportunity will not come by ever again unless the gods deign to give us another chance.

Thy name is vanity

How many thought that Mr. Omtatah's "exploratory committee" would run out of steam this fast? While Mr. Omtatah's novel approach was encouraging, it was hobbled by a common mistake made by all also-ran presidential candidates since the return of multi-party politics: the hubris of one man who thinks that he doesn't need the political party that sponsored him to Parliament.

Mr. Omtatah's path to the Senate was a relentless one. A stalwart of the "good governance" civil society set, he set himself apart by suing the Government (and winning) over the way public money was spent. His litigation record is the envy of many and his achievements cannot be gainsaid. When he put himself forward to stand in the Busia County senate election, I feared that his victory would not lead to the kind of change he thought he could bring to Parliament. I was right; Mr. Omtatah does not appear to have sponsored a single Bill since his election. He has kept on suing the national executive over the Finance Bill; but he has not sponsored a single Bill.

He is not the activist-turned-elected-politician to discover that governing, unlike activism, is not a one-man show. As a member of the Senate, he is part of the Government, and as part of his remit, is participating in the law-making function of Parliament. Sponsoring and participating in litigation has its benefits; but it is a costly affair and does not always lead to the outcome one hoped for. As the Finance Act 2023 demonstrated, even when you win, you still lose.

Mr. Omtatah was elected to the wrong chamber. For sure, there's a lot that the Senate can do to improve the lives of the people but the Senate is not where one wants to be of one hopes to affect real change to the way public money is spent. For that, one needs to be in the National Assembly where the Budget Outlook and Review Paper, Budget Policy Statement, Estimates of Revenue and Expenditure, Finance Bill and Appropriation Bill will be introduced and debated.

But even more important than that is the ability to "work well with others". Mr. Omtatah does not appear to have found that gear yet. Parliamentary practice is replete with the kind of horse-trading that undermines public confidence in the institutions of government. In the modern parlance, such horse-trading is the necessary evil one must engage in if they wish to change lives for the better. Mr. Omtatah's lack of a legislative record would seem to imply that he does not want to horse-trade with his Senate colleagues. I don't see how he will have a successful parliamentary or presidential career if he believes that he can govern alone.

It might be that his exploratory committee has gone quiet so that it can collate the data it has collected since it was appointed last year. If that is so, the members of the committee might want to tell him that he needs to work with his parliamentary colleagues even if it means holding his nose in the process. He must put forward legislation he believes will help the people. If he won't even do that, why should the people even consider his putative presidential candidacy as anything but a vanity project?

Mr. Omtatah's faith and our rights

Clause (2) of Article 32 of the Constitution states that, "Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance a day of worship." One of the ways one manifests their religion is to wear or display symbols of their faith, for example, like wearing a rosary.

"Every person" includes candidates for political office, such the office of president, the very office Okiya Omtatah is seeking. Not everyone is amused by how Mr. Omtatah's communications team has presented him so far in his exploration of whether or not he should offer himself for election as president. In one of the publicity photographs that accompanied his announcement, he is seen to be wearing a rosary. As usual, people are saying things about it and I am saying things about the things they are saying. QED.

One of the argument goes like this: Article 8 says that there shall be no state religion in Kenya. Therefore, Article 8 limits the right protected under clause (2) of Article 32 because Mr. Omtatah cannot seek the presidency with his religion as key cornerstone of his campaign. This is the wrong way to read Article 32 with Article 8.

First, if Mr. Omtatah proposes to seek the presidency on the basis that he is a good Catholic, he has every right to not only do so, but to campaign on the basis that his presidency will be influenced by his Catholic faith.

Second, what Mr. Omtatah cannot do is to impose Catholicism on Kenyans as a state religion or purport to appoint the Attorney-General, Cabinet Secretaries, Principal Secretaries, the Secretary to the Cabinet, the heads of the national security organs, the Director of Public Prosecutions, the chairpersons of state corporations, ambassadors and high commissioners, merely because they, too, profess the Catholic faith, and that the legislative proposals, statutory instruments, public policies, government programs and projects they initiate will be based entirely on the principles and values of the Catholic Church.

Third, the manner of limiting a right or fundamental freedom protected under Chapter Fourteen of the Constitution, including Article 32, is provided in Article 24. It is not Article 8 that limits the right protected under clause (2) of Article 32. A plain reading of Article 24 will demonstrate this. Three of the grounds for the limitation of a right or fundamental freedom are that the limitation shall be based on human dignity, equality and freedom. The demand that Mr. Omtatah must not profess his faith when campaigning, must not display the symbols of his faith whole campaigning, and must eschew the values and principles of his faith when campaigning, offends his dignity, denies that his reasons for seeking the presidency (if they include reasons tied to to his faith) are not the equal of more secular reasons, and denies himself the freedom protected by Article 32. The demand is unreasonable and unjustifiable in an open and democratic society.

In my opinion, Mr. Omtatah is not barred from seeking the presidency on the grounds that he professes the Catholic faith. That is not a valid ground from barring him from elected office. Anyone who objects to such a public display of religious values and principles that he or she disagrees with should campaign against Mr. Omtatah, by pointing out the risks he or she thinks Mr. Omtatah poses if elected. That person may point out to the harm done by men and women who profess the Catholic faith and why he or she thinks that so long as Mr. Omtatah publicly relies on his Catholic faith to make decisions affecting the lives of other Kenyans he should not be elected as Kenya's president. But there is absolutely no constitutional or legal ground for barring him from seeking the chance to stand in the presidential election.

This, I think, is the trap we fall into whenever we debate these things. We conflate our personal views about a person with sometimes erroneous interpretations of the law and then use this fallacious argument to support a patently wrongful conclusion. There are many Kenyans who are offended by the positions Mr. Omtatah has adopted because of his Catholic faith and his associations with organisations that promote many retrogressive ideas that are based on Catholicism. They fear that Mr. Omtatath's and those organisations' positions and ideas are a threat to Kenyans' rights and fundamental freedoms. If they feel strongly about it, the solution is not to find arbitrary justifications to violate Mr. Omtatah's rights and fundamental freedoms; the solution is to campaign against Mr. Omtatah or to campaign for a better candidate than Mr. Omtatah. That is what clause (2)(b) of Article 10 demands: human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.

Early days

Okiya Omtatah will not save you.

Let me explain.

Our political education seemed to have ended when Daniel Moi's Project was defeated in December 2002. Even after Mwai Kibaki and his acolytes conspired to not just perpetuate the Moi kleptocracy they inherited, but to supercharge it, we seemed to have given up on anything resembling civic mindedness and political education. Things came to a head in the 2005 constitutional referendum where even professors in the academy stated without irony or shame, "If Raila Odinga has read the draft constitution, who are we to read it for ourselves?" as we were shepherded in rejecting the draft Constitution.

Today, we are confronted with the desire in certain quarters to put Mr. Omtatah forward as Kenya's Sixth president in 2027. On the strength of his activism, especially the public interest litigation cases he has successfully prosecuted, Mr. Omtatah certainly has the approval of many Kenyans. His is not burdened by a history in which he was a full-fledged member of the Kanu eating classes or a beneficiary of the Kibaki lootocracy that robbed Kenyans of their second chance at political success. He was the thorn in UhuRuto's side, and his bona fides during the anti-BBI era are plain to see.

But we know very little about him and his leadership credentials. For sure, his successful election as a senator point to some of it, but the fact that he does not appear to have sponsored any Bills in the Senate is not encouraging. But more importantly, he has demonstrated that he prefers lone-wolf tactics, and refusing to participate in the messy horse-trading characteristic of legislative processes the world over. This may be a good thing, but I don't think so.

On one hand, he has stuck to his principles and has done everything in his power not to compromise them, even if means that he will not be credited with any legislative programme in the Senate. He can rely on the argument that legislating is the collective responsibility of ALL parliamentarians, and not just the sponsors of Bills. On the other hand, even if legislative is a collective responsibility, individual parliamentarians are expected to sponsor Bills to advance the issues their consciences and principles declare to be for the public good. Those Bills, if they receive the support of other parliamentarians, are proof that one has the capacity to work with even odious people in advancing a people-centred agenda. This does not appear to be Omtatah's style, hence his reliance on public interest litigation and his eschewing of legislative processes. It begs the question: why sit in Parliament if he is unwilling to act as a parliamentarian?

The second issue revolves around whom he has surrounded himself with in his political work. Little is known of his National Reconstruction Alliance Party of Kenya beyond the registration status with the Registrar of Political Parties and the annual reports by the Auditor-General on the finances of the party. Much is known of his stance on the Government's budget and human rights, but little is known about his positions on labour rights, universal access to education and healthcare, youth employment, environmental degradation, public investments, and dozens of other subjects for which a president must have more than a passing familiarity with. Moreover, little is know about what the people surrounding him think or have said about these issues.

Consequently, many Kenyans treat him as a tabula rasa, ascribing to him their own biases, without wondering at all if he will stand by them or pursue a different path. You can see this confusion manifesting itself in the many positions being adopted by people regarding his putative candidacy. There are those who support him regardless of what his positions are and are being mocked for their naiveté, and there those who wish to know more who are being shouted down for their scepticism.

The truth of the matter is that it is still too early to even conclude that he will be a presidential candidate in 2027. A great deal of work is still to be done to flesh out his political identity outside of anti-Finance-Bill litigations. Perhaps the establishment of the exploratory committee will provide greater insights as t who Okiya Omtatah the Politician actually is and whether that is a man Kenyans can vote for in 2027.

Mr. Omtatah's homework

In 2016, Miguna Miguna offered himself as a candidate in the general election. He sought the office of the Governor of Nairobi City County. He participated in the campaign by appearing on TV shows, publishing long-winded screeds on social media (particularly Twitter and Facebook) and making public comments on a rash of political questions of the day. His campaign would not be described as a softly-softly hearts-and-minds one; he relied on a sharp wit and a sharper tongue to excoriate those who dared to challenge his political bona fides. In the end, his campaign failed out in spectacular fashion and Mike Mbuvi Sonko was elected as Nairobi City's second, and epically disastrous, Governor.

Today, Okiya Omtatah has appointed an exploratory committee to "gather, analyse, evaluate, and act on information on the viability of the Senator's presidential bid for the August 2027 general election". Mr. Omtatah represents Busia County on the Senate as a member of the National Reconstruction Alliance Party of Kenya. I don't think I have ever heard of that political party; I don't know any of its other officials, or even if Mr Omtatah is its only representative in Parliament. So, it is enough to say that Mr. Omtatah has a long road to State House ahead of him.

Mr. Omtatah starts with one advantage over Mr. Miguna; very few people actively hate him. He is popular among a diverse group of online constituents and, obviously, in Busia from whence his senatorial campaign bore fruit. Many of his public positions have the support of professional associations and the political actors. Indeed, his reputation as a fighter for the people is unrivalled; only the Katiba Institute appears to have the same level of public legitimacy for the public interest litigation it engages in, a ball that was truly set rolling by Mr. Omtatah. Millions of Kenyans thank Mr. Omtatah for delaying the draconian taxes imposed under the Finance Act of 2023.

Therefore, Mr. Omtatah comes to this campaign with many positives in his favour. However, he is not a superman. He cannot do it all because he does not know it all. One of the things for which his knowledge still has large gaps is how the machinery of government truly functions. A perusal of many of the pleadings he has filed in many of his suits against the Government will show that he has a superficial understanding of the machinery of the Government but a fundamental lack of appreciation about its complexity.

If he is to offer himself as a viable chief executive of the Government, he must educate himself on how the Government is run, why some pieces of it are efficient and effective and others are wasteful and corrupt money pits. Not all Government institutions are the same, or equal, or suffer from the same malaise. In order to  know whether reform is possible, he must know what is reformable and what must be eradicated root and branch. He must resist the urge to buy Parliament or the Judiciary, something no president has successfully been able to do since Jomo Kenyatta engineered the 1964 constitutional amendments that turned Kenya into a Republic.

Mr. Omtatah is intelligent but he is also a parliamentarian, where intelligence sometimes is sacrificed at the altar of expediency. The horse-trading among parliamentarians is how so much of the peoples' interests receives short shrift. It is also notable that Mr. Omtatah has not used the parliamentary process to advance any of his pet projects; the Senate website indicates that he has not sponsored a single Bill on any subject, even his pet subjects of fiscal probity and tax justice. This is not reassuring. Every president needs to know how laws are made and why bad laws are enacted and good laws are sabotaged.

I don't know if Mr. Omtatah's committee will recommend that he moves forward in his bid for the highest political office in Kenya but I hope that if he does, he does the necessary homework to know how to govern, when to rule with ruthlessness and when to use a light touch to get shit done. If he doesn't do his homework but is nevertheless elected, his will be a tumultuous and tempestuous presidency, more than that of his predecessors. Mark my words. Kenyans are no longer interested in presidential dilettantes; that ship went down in flames in August 2022.

In Kenya, we don't abolish empires

The Government is in the empire building business, not the empire killing business. I saw an interesting tweet: I am getting to that point whereby I’ll vote in anyone who vies and promises to stop Housing Levy and SHIF deductions. I immediately saw the flaw in the wish: your candidate will stand in the election and promise to abolish the Affordable Housing Levy (AHL) and Social health Insurance Fund (SHIF) deductions but the moment he takes office, he will abandon his promise and, instead, find a million ways to make you comply with the law. Let me illustrate with a story about the consequences of the Constituencies Development Fund (CDF).

When it was initiated in 2003, it was meant to facilitate greater citizen involvement in development decisions at the grassroots level, and complement the central-government-led development framework that revolved around the corrupt provincial administration. It was a resounding success in its initial stages and many citizen-focussed development projects were completed that immeasurably improved lives and livelihoods.

The model was thereafter expanded to youth enterprise development and women empowerment with establishment of the Youth Enterprise Fund (YEF) and the Women Enterprise Fund (WEF). These were later followed by the Uwezo Fund and National Government Affirmative Action Fund (NGAAF). Suffice to say, the Funds succumbed to the corruption that eventually took root in the Kibaki Government and they have concisely lost billions for years with little to no accountability.

Facing a severe cash crunch, in 2019 Uhuru Kenyatta's Government attempted to roll all the various enterprise funds into one, the Biashara Kenya Fund, and wind up the other funds by transferring their balances into the new one. Parliament was having none of it. The Funds had become empires unto themselves and nothing short of an act of God is going to wind them up. This is true of the Affordable Housing Levy and Social Health Insurance Levy.

The monies raised by the two new programmes is so enormous - tens of billions of shillings per month - that no one in the national executive or Parliament is interested in winding them up. So long as this Government stands and so long as its parliamentarians enjoy a majority in the National Assembly, Kenyans will pay through the nose for "affordable housing" and "social health insurance" even if the majority will never get an affordable house are receive comprehensive social healthcare.

The only time the Government abolishes one of its empires is when it is replacing it with another bigger one. The original NSSF was replaced by a new NSSF. NHIF was replaced by SHIF. CDF was replaced by NG-CDF (and all this in the face of judicial decrees). If Biashara Kenya had been structured as two replacements for YEF and WEF instead of one, it would have gone through without a hitch. The AHL and SHIF empires, with all their inequities and iniquities, are here to stay.

The false dream of a national dress

Every once in a while, someone with little to no business about it tells me how to do my job. They ("they" are people with a bit of power and, perhaps, a bit of seniority, but very little technical ability, if any) look over my shoulders as my fingers flit, with nimbleness and confidence, over my very expensive mechanical keyboard, and attempt to tell me what to draft (and much, much worse, how to think about a legislative sentence). Those kinds of attempts are made only once by these sorts of people and they never darken my door again. One even had the temerity to try and pull of an appeal to authority fallacy on me. Anyway, this is not about my challenges dealing with the professionally feeble-minded in my profession but about the "Kenya National Dress", a national government cultural boondoggle that has consumed tens of millions of dollars for dogs' years with nothing to show about it.

The Government has tried on many occasions to impose on the Kenyan peoples a national dress. It has failed. The Government has made these failed attempts because its instinct to control every aspect of the Kenyan peoples' lives, especially their cultural lives, has endured from the moment a white man set foot on the shores of Nam Lolwe and decreed that the bare-breasted women of the Kavirondo should cover up because he felt some type of way. Rather than educate himself on the culture and lives of the peoples he encountered, mzungu imposed on the "native" peoples his culture and enforced his cultural norms with a combination of biblical interpretation and coercively violent police power. The Government has carried on this tradition without batting an eyelid, explaining the obsession with a "national dress". So long as the effort for a national sartorial identity is driven by the Government, the effort will fail abjectly.

The several state-sponsored institutions of high learning employ cultural scholars of no mean repute who have documented so much of the Kenyan peoples' cultural histories. Even in the grasp of an overweening government that sought to police how they could write what they wrote, these men and women have published truly ground-breaking work on what the peoples of the land that eventually became Kenya spoke, did, ate and dressed in, and why. Bethwell Ogot's truly magisterial "A History of the Luo-Speaking Peoples of East Africa" is indicative of the gifts our historians are capable of bestowing on us if the government kept its grubby controlling fingers out of the kitchen.

Government ministers, and the mandarins they command in their ministries, are not scholars, though these days the corridors of the national and county executives are festooned with men and women brandishing PhDs (both real and honorary) like weapons. But these people are not employed in the government because they are scholars; they are employed in the government because they are (or are capable of being) able administrators. Their output is not composed of scholarly works but rules, regulations, policies and a mysterious document called a budget. So it beggars belief that government ministers (and their minions) think they have the cultural intelligence to supervise the development of a "national dress" that will unify the over fifty cultural traditions that are to be found in the borders of the Republic of Kenya. This kind of arrogance is why many Kenyans have lost faith in the senior-most ranks of the public service, and more and more Kenyans are treating the entire public service like a nuisance at best and an invasive cancer at worst.

The government, this Government, exists to control the people it is supposed to serve. It has long-struggled to cede control to the people despite the bold declaration in Article 1 clause (1) of the Constitution that states that All sovereign power belongs to the people of Kenya. And so, tens of millions of dollars more will continue to be wasted as ministers and ministry wankers look high and low for inspiration to create, finally, the Kenya National Dress and parade it in all the runways of the world. That kind of arrogance beggars belief. In the face of thirty years of abject failure, these people are still forging on in search of an elusive, unattainable dream. To paraphrase Henry II, will no one rid us of this pestilential and wasteful white elephant?